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Methinks the Court of Appeal found itself in a pickle on this one:

2.  This hearing, scheduled under s 34A of the High Court Ordinance, is to determine if judges, who are full members (“members”) of the Jockey Club and/or the Cricket Club, should recuse themselves from hearing the appeal.

This is a great point.  Kudos to the two barristers who gave it a go.

3.  It is fair to point out that a significant percentage of judges of the High Court and above are members of the Jockey Club.  If judges, who are members of the Jockey Club, were to recuse themselves from hearing the appeal, it will be difficult to have a panel of judges to hear the appeal, both in the Court of Appeal and if the matter does not end there, in the Court of Final Appeal.

But this won’t affect the court’s conclusion. At all.  I mean it would be slightly ironic if there was a certain victim – in this case a rich powerful victim like the Jockey Club, who could never get justice because no senior judge could ever hear the case.

4.  Nevertheless, the question has to be resolved as a matter of law, whatever difficulty or inconvenience that it may lead to.

This is reassuring.  I wasn’t sure that’s what Judges did, but the crisis has been resolved.  They resolve questions according to the law, without regard to difficulty or inconvenience.

And so on to the heart of the matter:

15.  Whilst the Jockey Club can be said to have a pecuniary and non-pecuniary interest in the outcome of the appeal by reason of the restitution order and its decision to expel the appellant, although the pecuniary interest is of little tangible value, members of the Jockey Club cannot be said to have such an interest.

16.  Members of the Jockey Club pay a fixed monthly subscription fee for the privilege of enjoying the recreational facilities it provides. Members of the Jockey Club, not being stewards and/or voting members, do not take part in its management and could not be said to have any common interest with the Jockey Club relating to the outcome of this appeal.

17.  The suggestion that a judge, who is a member of the Jockey Club, sitting in judgment of this appeal, is a judge of his own cause is unfounded. Members of the Jockey Club, in my view, do not any direct or indirect interest, pecuniary or otherwise, in the outcome of the appeal.

18.  A fair-minded and informed member of the public would not have any reasonable apprehension or suspicion that judges, who are members of the Jockey Club, might have been biased against the appellant.

And the answer is…..

20.  In my view, the appellant’s right to a fair hearing by an independent and impartial tribunal established by law will not be violated if the appeal is heard by judges who are members of the Jockey Club. The objection raised by the appellant is not a valid one.

Of course I guess the more interesting question would be if Yeung JA was himself a member of the Jockey Club, as then he would definitely be sitting in his own case – the case of all judges who are members of the Jockey Club eligible to hear this case in the Court of Appeal or the Court of Final Appeal.

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